A Review of Western Legal Theory. By Augusto Zimmermann

LexisNexis, 2013.

When most people think of law, they think of various dos and don’ts which the states enforce. Speed limits, murder laws, and contract legislation may all come to mind when we contemplate legal issues. But law is not that simple, and there are in fact all sorts of legal theories, philosophies and ideologies which lie behind them.

Worldviews and presuppositions, in other words, generally underlie specific laws and legal policies. Therefore we have such things as Marxist legal theory, feminist law studies, and even queer legal theory. All these differing views will determine how law is done, how judges operate, what sort of laws are passed, and how societies operate in general.

Law is not just some neutral, objective thing floating in mid-air, but is far too often the subject of political and ideological squabbles. This is certainly true in Western law schools, where many law faculties, courses and classes are dominated by various radical and leftist ideological agendas.

Indeed, I am aware of one law faculty which is comprised almost entirely of homosexual and lesbian lecturers and professors. And this would not be a rare thing either. Thus most law students will be getting as much ideology as education when they study at many of these schools.

We need to be aware therefore about these various theories and ideologies which reign supreme throughout the West. And this volume by Perth law professor Augusto Zimmermann fits the bill nicely. It helps us sort through the various competing legal ideologies and theories, and enables us to get a better grasp of why the judiciary, courts, and lawmakers do what they do and say what they say.

As a textbook, this volume covers the usual topics in this field. Thus we have meaty chapters on various legal theories, such as legal positivism, postmodern jurisprudence, critical legal studies, Marxist legal theory, feminist jurisprudence, and so on.

But given the vast importance of such things as natural law theory and rule of law theory, Zimmermann gives these topics due attention. As to the former, he reminds us that “it is not possible to deny the relevance of natural law theory in the development of the rule of law in Western societies”.

It was not just great medieval Christian thinkers who developed this, but the great classical philosophers as well. Thus we have a line of great thinkers from Plato, Aristotle and Cicero, through Augustine and Aquinas, to Hooker, Blackstone and Finnis today advancing this concept.

And we still feel its impact today, with its principles enshrined in the English Magna Carta and Bill of Rights, as well as the US Declaration of Independence and the French Declaration of the Rights of Man and the Citizen. Most notably its presence was felt at the post-WWII Nuremberg trials, where Nazis who said they were just doing what they were ordered to do were met with the claim that there is ‘a law above the law’.

In marked contrast to many other theories of law, this long-standing view declares there to be objective ethical standards and principles which transcend humans and governments, which we all stand under, and which should help form the basis of actual state legislation.

Theories like legal positivism argue that a law is valid simply if it has gone through the correct practical procedures of the state. Questions of proper authority and the like, not moral considerations, are what mainly matter here. Thus we see modern states like that of the Nazis running with this concept.

Says Zimmermann, “When one looks at the German legal profession in the 1930s, leaving aside those who were fully committed to the Nazi ideology, it becomes apparent that legal positivism played a significant role in the failure of judges and lawyers to stand up against Nazi injustices.”

Again, the issue of worldview plays an important role here. One’s worldview determines one’s legal philosophy. Ideologies like national socialism, the philosophy of Nietzsche, and social Darwinism, all gave rise to the Nazi horror. Thus “the Nazi legal system cannot be isolated, like some sort of mere accident” from these supporting ideologies and worldviews.

What the Nazis and Marxist dictatorships lacked of course was the fundamental principle of Western democracies: the rule of law. Under the concept of rule of law, all public authorities and leaders are subject to the same legal rules and principles as everyone else.

Rule of law “is essentially concerned with protecting citizens from unpredictable and arbitrary interference with their vital interests”. As such, it “involves a delimitation of governmental functions, so that the power of the state is exercised in accordance with clear, stable and general rules of law”.

One can readily see how such legal thinking and practice makes things like the Nazi police state preventable and inoperable, at least in theory. Modern Western democracies operate on the overriding principle of the rule of law, but steps must always be taken to ensure this is not whittled away by judicial activism, political correctness, and activist minority groups.

Zimmermann helpfully notes how often some of these various legal theories overlap and/or influence one another. For example, he rightly explains how both Marxists and the Nazis shared common philosophical and political ideologies and practices. He writes, “the notion that Nazism and Communism are polar opposites on the political spectrum hides the fact that they are kindred spirits. There is a remarkable convergence of ideas between them”.

And Zimmermann nicely demonstrates how these totalitarian systems were so very heavily influenced by evolutionary legal theory. Indeed, “all the three greatest genocidal regimes of the last century – Nazi Germany, Soviet Russia and Communist China – were firmly grounded in the scientific materialism of Darwinism.”

Or consider feminist legal theory. While there are differing versions of feminism, such as liberal and radical, much of feminism has marched arm in arm with Marxist thought: “While a liberal feminism supposes equal rights and duties between all men and women, radical feminism, inspired by Marxist ideology and postmodern social analysis, is highly critical of these values. Indeed, Marxist theory overlays much of contemporary feminism.”

This broad-based yet detailed examination of various worldviews, ideologies, legal philosophies and theories is most helpful indeed, and Zimmermann has done an excellent job of pulling this off. Complex theories are explained in easy to follow language, and the entire gamut of some two and a half millennia of legal thought is nicely laid out here.

Anyone wishing to understand the modern workings of law and the judiciary needs to have this valuable resource to help explain the reigning legal ideas and theories which form their backgrounds. It is a very important contribution to some very complex and multilayered topics which we need to understand.

18 Comments

Dear Bill…I have just read your 4 part testimony and was struck by the many similarities with my own. I have a basic website which covers my last 40 years in the arts.

I would be very interested in beginning a dialogue with you on how you see the arts, particularly as you are aware of Schaeffer and no doubt Rookmaker as well.
I for one, gave up the arts because I had become so disillusioned with the ‘artworld’ but have recently arrived at a conviction that if God called me to it in the first place it was not mine to lay aside and I have begun to re-engage. It has been difficult.

I am currently presenting a series on Worldviews at my local Church; Southlands Vineyard Adelaide, but am also interested in presenting a future series on Art from a Christian perspective. Starting with approaching the so-called ‘prehistoric’ art period through new eyes.

I have spoken at worldview conferences in Adelaide before and some folks are hoping to do another one this year. It would be good to connect then.

Bill Muehlenberg, CultureWatch

Ian Nairn
25.1.13 /
3am

Don’t forget that Stalin really wasn’t communist, or at least that is what communists nowadays say. It is really frustrating to try and talk to a communist who won’t accept what communism has done in practice. It is not pretty, so they just brush it off as saying it wasn’t true communism.

I have been informed that if you visit the online store www.lexisnexis.com/store/au/ when the book’s cart is selected for check out you can enter WLT2013 under Promotion Code. This will then allow for a discount of 20% bringing the total amount per copy to $79.20. A bit cheaper!

Bill Muehlenberg, CultureWatch

Richard Eason
25.1.13 /
11pm

In his book, “The Changing Law”, Lord Denning, a jurist far more renowned than Prof Zimmerman, shows that Lord Atkin based a famous judgement on Jesus’ love command.
Denning says, “It is, I suggest to you, a most significant thing that a great judge should draw his principles of law, or rather his principles of justice, from the Christian commandment of love. I do not know where else he is to find them. Some people speak of natural justice as though it was a thing well recognisable by anyone. But I am quite sure that our conception of it is due entirely to our habits of thought through many generations. The common law of England has been moulded for centuries by judges who have been brought up in the Christian faith. The precepts of religion, consciously or unconsciously, have been their guide in the administration of justice.”
The concept of so-called “natural law” is a deliberate attempt by rationalists to avoid the inconvenient truth that the only nations that have ever experienced widespread justice, freedom and prosperity are those that have drawn their legal values from Jesus’ love command.
The idea that the cruel slave states of ancient Greece and Rome invented natural justice is hogwash. Even their much vaunted “democracy” was for the few – and the very few.

But I am not sure if you have a proper understanding of just what the concept of natural law actually means. Plenty of Christians have held to it for over the past 2000 years, from Augustine to Budziszewski, and many point to Romans 1&2 as partial justification for it. Given that the concept has been around for 2 ½ millennia, one cannot claim it has anything to do solely with rationalism a la the Enlightenment, if that is what you are suggesting. And your last line about “invented natural justice” really has absolutely nothing to do with natural law theory. It is not about making up law, and certainly not man-made law, but recognising already existing objective, transcendent law, as found in God himself. Nothing amiss with that I would have thought, so I am not quite sure where you are coming from here.

Bill Muehlenberg, CultureWatch

Lance A Box
26.1.13 /
12am

Mike McMeekan

You might be interested in a few words I put together on Art from a Christian Perspective:

In my humble opinion, Natual Law Theory has gotten us all into the trouble that we find ourselves in today. Only God’s revealed Law can provide us with an unmediated absolute from which to determine what is right and wrong. Natural Law is a movable feast that gets defined by sinful men, and the boundaries are pushed this way and that, according to the prevailing exposure to God’s revealed Law, or the prevailing rejection of God’s revealed law; i.e. in societies that have been saturated with the proclamation of God’s revealed law, then certain values seem natural to those living in those societies. On the other hand, if the Law of God has been trodden under the feet of men, in the name of liberty in the grace of God, then very different values eventually emerge as natural.

Rushdooney deals with this matter very well on pp. 958-960 of his Roots of Reconstruction.

p. 959 “After the Enlightenment began to rethink natural law, there was a steady separation from the concept of the Christian additions to it, and the result was that natural law became the source of the theory of natural rights, i.e., rights that are inherent to man and in man. Just as law is now identified with nature as separated from God, so right was identified with man apart from God.”

p. 960 “As we deal with the problems of man and society, we have the clear guide of God’s law, a surer foundation than fallen man’s unregenerate reason. For us, neither the reason of an intellectual elite of would-be philosopher kings, nor the law of the state give valid law. Only God can legislate, and only God’s law is true law. Man’s administration of law must express God’s law, not man’s reason or the state’s will” – both claiming to have discovered a law in nature; propounding such things as: “All men are created equal” therefore, we cannot deny homosexual access to the institution of marriage; we cannot deny women the right to rule in the church; we cannot prevent children from enjoying the joys of sexual activity with older family members (and such like). To deny such things is to impinge upon natural law rights (as determined by contemporary interpreters of what is a law imbedded in nature).

Whereas, God’s command word says: “He who lies with another man must be killed.” “Women are to remain silent in the Church.” “A man is not to lie with his daughter (and other close relatives).” This is the law, and that which is contrary to God’s enscriptured Law is contrary to God’s creational law as well.

A few replies if I may. I am of course well aware of how various Christians, including Rushdoony, dislike natural law theory. But this was simply a review of a law textbook, not a proper treatment of natural law. If I have the time I may do something on it one day. So here is not the place to get into a detailed debate over it, for the simple reason that so much needs to be said about it first before one can even begin to debate it.

And no one I know of who sees some merit in the theory argues that it is to be set against specific revelation. It is seen as part of general revelation, both of which were given us by God. Thus to claim we need special revelation is of course a given, and no one is arguing with you about that. But as I say, those wishing to make a major to-do about all this might best wait until I at least pen some articles with background info, etc, on the topic.

And perhaps a few more things should be said here, since both I and Zimmermann seem to be taking unnecessary flak at the moment:
-I take it the critics have not read the book, so they only have my far from perfect review to go on. If so, attacking the book and its author seems a bit out of place here. If anything, you might attack me for perhaps failing to do the book justice.
-The author of the book is in fact a Christian, so he is onside on these matters. So again, I am not sure why he is being attacked here.
-The book itself is merely a textbook published by a secular publisher for secular university students, so the author of course was not able to bring real gung-ho biblical and theological discussions to bear on all this. Thus if critics are looking to attack him on biblical grounds, well they have picked the wrong target, since this is not a theological treatise at all, and of course was not meant to be.

The author is most definitely a Christian of a very biblical kind. See my interview with Dr Zimmermann, Law and Creation, about Christian vs Darwinist influences on legal systems.

Jonathan Sarfati, US

John Wigg
26.1.13 /
9am

Bill, Reading your review reminded me of three chapter names in Solzheitsyn’s Gulag Archipelago: ‘The Law as a Child’, ‘The Law Becomes a Man’, ‘The Law Matures’.

When human laws “are constantly evolving” and jurists and legislators mistake the Darwinian model of nature for the real, created foundation for natural law, surely we need not be surprised when there occur social implosions and political explosions which belie the inherent stability and cohesion we have come to understand by the phrase “the rule of law”.

John Wigg

Lance A Box
26.1.13 /
1pm

Dear Bill

Comments above were not meant to be a personal attack. Sorry if they came over as such. You do a really great work, and are much appreciated in our circles.

Wolters, in his book, ‘Creation Regained’, spoke of Creational Law. And I sit much happier with that expression to describe the aspects of God’s holiness reflected in His creation order (as per Romans 1 & 2, as cited above).

Natural Law concepts have origins prior to the Christian era, and were Christianised for a time, but with rationalism, have been taken to realms that I believe are not compantible with a Biblical Christian world and life view.

Bill, you are very much respected, so please, do not receive comments as a personal affront – you get enough of that from the enemies of Christ.

With much appreciation for all that you are and do in the name of our Lord and Saviour,

No probs. As I say, when I do a proper article on this topic then a big debate can go ahead if need be, but this was a book review of a Western legal theory textbook, so not really the place to enter into such a full-scale debate on a rather big and complex topic, with many historical, philosophical, theological and biblical ramifications. So stay tuned…

Bill Muehlenberg, CultureWatch

Dr Augusto Zimmermann
27.1.13 /
5pm

Bill is quite right to say that my book is not a theology treatise, but only a jurisprudential work that seeks to address the many themes and traditions in Western legal philosophy.

Accordingly, the book should necessarily contain a chapter on natural law philosophy. I am just addressing the topic and not necessarily endorsing any of its basic assumptions.

For those commenting on a book who have not read it yet, how about if you read it first before you make any criticism? Would it be too much to ask from a professed Christian?

As for the statement that Lord Denning is more renowned than me, of course, I wholeheartedly agree! And yet, I must confess that I only seek the praises of God and not others.